Nepali v Minister for Immigration

[2019] FCCA 1180

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEPALI & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1180

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas – Administrative Appeals Tribunal not satisfied that the primary applicant had a valid nomination as required by cl.187.233 and affirmed Delegate’s decision to refuse the application for the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91X, 359A, 359B, 359C, 360, 363A, 379A, 379G

Migration Regulations 1994 (Cth)

Cases cited:

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

First Applicant: NAVIN NEPALI

Second Applicant: AMRITA RISAL

Third Applicant: NICHOLAS BARAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 748 of 2017

Judgment of: Judge Dowdy

Hearing date: 16 April 2019

Delivered at: Sydney

Delivered on: 16 April 2019

REPRESENTATION

The First Applicant appeared in person and by consent and with leave appeared on behalf of the Second and Third Applicants.

Counsel for the First Respondent: Ms J. Strugnell

Solicitors for the First Respondent: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Amended Application filed in this Court on 21 April 2017 is dismissed.

2. The First and Second Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $5,600.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 28 May 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 748 of 2017

NAVIN NEPALI

First Applicant

AMRITA RISAL

Second Applicant

NICHOLAS BARAL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The First Applicant is a male citizen of Nepal, having been born on 30 December 1975. 

2. The Second Applicant is a female citizen of Nepal, having been born on 10 February 1983, and is the wife of the First Applicant.

3. The Third Applicant is a male citizen of Nepal, having been born on 28 March 2013 and is the son of the First and Second Applicants (collectively, the Applicants). 

4. By Amended Application filed in this Court on 21 April 2017 they seek to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 February 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 November 2015 refusing to grant to them Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas (Subclass 187 visa(s)). 

Background

1. On 5 March 2015 the Applicants applied for the Subclass 187 visas with the First Applicant being the primary applicant and the Second and Third Applicants being secondary applicants as members of the family unit of the First Applicant and being dependent on the success of the First Applicant for the success of their visa applications. The First Applicant applied in the Direct Entry stream, being one of three alternative streams, the other two streams being Temporary Residents Transition stream and the Agreement stream.

2. The First Applicant was seeking to work in the nominated position of ‘Accountant (General)’ employed by BLS Farming Pty Ltd (the nominator). It was a requirement under cl.187.233(2) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) that the nominator, who was to employ the First Applicant, have its nomination of him approved by the Minister.

3. Unfortunately for the Applicants on 29 September 2015 the nomination by the nominator of the First Applicant as nominee for approval by the Minister under reg.5.19 of the Regulations was refused by a Delegate of the Minister (nomination refusal decision). 

4. On the same date, being 29 September 2015, the Department of the Minister wrote to the Applicants inviting them to comment on the refusal of the nominator's nomination application within a period of 28 days.  That letter of invitation stated that the Applicants had two options:  they could either withdraw the Subclass 187 visa applications or their Subclass 187 visa applications could be refused in the absence of any withdrawal.  The Applicants did not respond to that letter.

5. On 10 November 2015 the Delegate of the Minister refused the Subclass 187 visa applications on the basis that the First Applicant as primary applicant did not meet cl.187.233 because the nomination in relation to him had not been approved by the Minister.  Accordingly, the application of the Second and Third Applicants as dependent applicants was also refused in accordance with cl.187.311(a) as they were not members of the family unit of the First Applicant as a person who held a Subclass 187 visa.

6. I note that the Delegate also found that because the nomination of the First Applicant by the nominator had not been approved by the Minister he likewise could not satisfy the alternative streams, being the Temporary Residents Transition stream or the Agreement stream, and the Delegate refused to grant Subclass 187 visas to any of the Applicants. 

7. Then on 18 November 2015 the Applicants sought merits review of the refusal of the Delegate to grant to them Subclass 187 visas.  The review application was lodged by the migration agent of the Applicants and they gave a copy of the decision record of the Delegate to the Tribunal and provided the migration agent's email address for the purposes of communication with the Tribunal (nominated email address).

8. On 2 February 2017 the Tribunal affirmed the Delegate's nomination refusal decision. That being the case, on 3 February 2017 the Tribunal wrote to the Applicants pursuant to s.359A of the Migration Act 1958 (Cth) (the Act) to invite them to provide comments on information that it considered would be part of the reason for affirming the decision of the Delegate under review, being the fact that the Tribunal had affirmed the nomination refusal decision of the Delegate (s.359A letter). The s.359A letter was sent to the Applicants’ migration agent at the nominated email address and gave a period of 14 days for the Applicants to respond.

9. The letter further advised that if comments were not provided by the requested date, being 17 February 2017, the Tribunal might proceed to make a decision without proceeding to a hearing. The Applicants did not respond to this letter, either by way of providing comments within the prescribed period or to seek an extension of time. On 23 February 2017, the Tribunal determined that s.359C of the Act applied, and that the Applicants were not entitled to a hearing before the Tribunal pursuant to ss.360(3) and 363A of the Act.

10. Further, at [14] of its Decision Record the Tribunal stated as follows:

    [14] The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

11. The Tribunal further recorded at [14], [15] and [16] in its Decision Record:

    [11] The applicant was nominated in the position of Accountant by BLS Farming Pty Ltd. The Department refused that nomination and BLS Farming Pty Ltd applied to the Tribunal for review of that decision. On 2 February 2017 the Tribunal affirmed the Department's decision not to approve the nomination.

    [15] As indicated above, the applicant was nominated in the position by BLS Farming Pty Ltd. At the time of this decision the nomination has not been approved, consequently, the applicant does not meet c.187.233(3).

    [16] Given the above, the Tribunal finds that cl.187.233 is not met.

12. Accordingly, in the circumstances, the Tribunal affirmed the decision of the Delegate not to grant Subclass 187 visas to the Applicants.

Grounds of Attack on Tribunal Decision

1. The Applicants’ Amended Application filed in this Court on 21 April 2017 pleads three Grounds of review:

   1.  I submitted a statement of decisions and reasons of the Administrative Appeals Tribunal dated 24 February 2017.  The statement confirmed that I was represented in relation to the review by registered migration agent (point 6 of the decision). 

   2.  On 3 February 2017 (point 12) it is assumed that the Tribunal wrote in accordance with requirements of s.359A inviting to provide comments on information concerning the nomination.  On point 13 the invitation was sent to the representative. I do not agree with the Tribunal to make a decision without my entitlement to appear before the Tribunal and give evidence and present arguments and I strongly state that neither the Tribunal or the representative gave me the opportunity to comment and neither of them brought the matter to my attention. I totally deny receiving a request, and strongly believe that the Tribunal deprived me of natural justice and fairness by making a decision without hearing.

   3.  I will provide an affidavit to support an application when I receive copy of the documents.

Consideration

Ground 1

1. This Ground does not actually constitute a proper ground for a finding of jurisdictional error. I note that it was confirmed at the hearing in this Court that the date of 24 February 2017 should be read as 23 February 2017 in referring to the date of the Decision Record of the Tribunal.  It is certainly true that the Applicants were represented by a migration agent.  But otherwise Ground 1 does not make a meaningful assertion of jurisdictional error, and fails to establish any jurisdictional error.

Ground 2

1. This ground is basically an assertion by the First Applicant that he does not agree that the Tribunal was entitled to make a decision without any entitlement for him to appear before the Tribunal to give evidence and present arguments. He also asserts that neither the Tribunal nor his migration agent gave him any opportunity to comment, and neither brought the matter to his attention. 

2. However, the fact of the matter is that in my view, the Applicants were not entitled to appear before the Tribunal at a hearing to give evidence and present arguments by force of s.360(3) of the Act because none of them responded to the s.359A letter: see ss.359C(2) and 363A of the Act and Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at 417 [27] and [29].

3. I am of the view that the evidence tendered by the Minister establishes that:

   a)the s.359A letter complied with the applicable statutory requirements;

   b)the s.359A letter gave to the Applicants particulars of information that would or could be part of the reason for affirming the Delegate’s decision under review;

   c)the s.359A letter was sent by a method specified in s.379A(5)(b) of the Act, namely by email to the last email address provided by the Applicants to the Tribunal, being the nominated email address;

   d)the prescribed period of 14 days’ notice was given: see s.359B(2) of the Act and reg.4.17(4)(b)(i) of the Regulations;

   e)the s.359A letter advised the Applicants how comments could be provided: see s.359B(1)(b) of the Act; and

   f)the s.359A letter was sent to the person authorised to receive documents on behalf of the Applicants: see s.379G(1) of the Act.

4. In accordance with s.379A of the Act, because the s.359A letter was forwarded by email, the Applicants were taken to have received the invitation at the end of the day on which the invitation for comment was transmitted to their authorised representative, being 3 February 2017: see s.379A(5) of the Act.

5. Accordingly, the Minister has established that in the circumstances as set out above the Applicants were taken to have received the s.359A letter on the date it bore, being 3 February 2017, regardless of whether they actually and in truth and in fact received it or their migration agent in truth and in fact received it. The Applicants’ complaint that they were denied an opportunity to comment therefore fails.

6. I finally note that whether or not the Applicants were given an opportunity to appear at the hearing before the Tribunal could not have affected the result of the merits review application because, on any basis, the Tribunal was bound to affirm the Delegate’s decision not to grant Subclass 187 visas to them because the nomination of the nominator of the First Applicant had been refused. 

7. In my view, Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 3

1. This is not a meaningful Ground in aid of an argument that the decision of the Tribunal is affected by jurisdictional error and is not made out. 

2. I note that at the hearing the First Applicant, who appeared on behalf of the Second and Third Applicants, made similar complaints as appear in Ground 2 to the effect that he had not been given notice of the s.359A letter and blamed his migration agent in that respect. However, there is no suggestion of any fraud in this case. And, in any event, there is no evidence that the Migration Agent failed to alert the Applicants to the s.359A letter other than the assertion of the First Applicant from the bar table.

3. Further, as I have said, whether or not the Applicants or any of them appeared at the Tribunal hearing could not have affected the result in light of the fact that the Tribunal had affirmed the nomination refusal decision of the Delegate on 3 February 2017.

A Further Matter

1. I finally note on a different issue that at the hearing the First Applicant asked that the actual names of the Applicants be suppressed. That of course is done in relation to Protection visa applications by force of s.91X of the Act. However, this was an Employment visa application and bears no similarity to a Protection visa application.

2. I invited the First Applicant to give good reasons as to why the names of the Applicants should be suppressed but he was unable to do so and Ms Strugnell, who appeared for the Minister, took the position that this case bore no similarity to the position in relation to Protection visa applications. 

3. In my view, it is an important part of our legal system that there be as little suppression as possible in relation to legal cases and in my discretion I am not prepared, in the absence of any proffered good reason, to suppress or anonymise the names of the Applicants.

Conclusion

1. The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Amended Application filed in this Court is to be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 7 May 2019